Parole

F-2018-78

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In OCCA case No. F-2018-78, Jordan Batice Mitchell appealed his conviction for First Degree Murder. In an unpublished decision, the court decided that the State of Oklahoma did not have jurisdiction to prosecute him. This means that the court could not judge this case because it involved issues concerning his status as an Indian and the location of the crime being within the Muscogee Creek Reservation. The finding was based on a previous case, McGirt v. Oklahoma, which affected how certain crimes involving Native Americans are prosecuted. Consequently, the court vacated Mitchell's sentence and remanded the case with instructions to dismiss it. There was a dissenting opinion regarding the decision, as one judge expressed concerns about the implications of the ruling.

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F-2018-1267

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**Case Summary: Shelley Jo Duncan's Appeal** **Court:** Oklahoma Court of Criminal Appeals **Judge:** Rowland, Judge **Case Number:** CF-2017-31 **Verdict:** Affirmed **Background:** Shelley Jo Duncan, a teacher, was charged with Lewd Acts with a Child. Her trial was conducted in Cleveland County after a change of venue due to pre-trial publicity. Duncan was sentenced to six years in prison in accordance with the jury's recommendation. **Issues Raised on Appeal:** 1. The denial of a motion to strike two jurors for cause. 2. Claims of improper commentary on her right to remain silent. 3. The credibility of the alleged victim and sufficiency of evidence for conviction. 4. Admission of other crimes evidence regarding past drug use. 5. Allegations of ineffective assistance of counsel. 6. Claims of prosecutorial misconduct during closing arguments. 7. Challenge to the excessive nature of her sentence. 8. Cumulative errors affecting the fairness of the trial. **Findings:** 1. **Jurors for Cause:** The court did not err in denying the motion to strike jurors S.M. and J.S. Duncan did not preserve her claim regarding J.S. since a peremptory challenge was successfully used to remove her from the jury. 2. **Right to Remain Silent:** Testimony regarding the investigation did not comment on Duncan’s post-arrest silence. Any potential error was cured by the court's action in sustaining objections. 3. **Credibility of Victim:** The court found the victim's testimony credible and sufficient, supporting the conviction based on the preponderance of evidence, even without corroboration. 4. **Other Crimes Evidence:** Duncan’s argument related to drug use was denied as she had introduced this evidence herself. Inviting error prevented relief. 5. **Ineffective Assistance of Counsel:** Duncan could not demonstrate that her counsel's performance was deficient or that it prejudiced her case sufficiently to impact the outcome. 6. **Prosecutorial Misconduct:** Claims of improper comments were denied, as the prosecutor’s comments did not exceed the acceptable limits of argument during closing statements. 7. **Excessive Sentence:** The six-year sentence was within statutory limits and did not shock the conscience of the court, thus it was upheld. 8. **Cumulative Effect of Errors:** The court found no cumulative errors that would necessitate a new trial or modification of the sentence, as no individual error was identified. **Conclusion:** The Oklahoma Court of Criminal Appeals affirmed the judgment and sentence of the district court. Duncan was denied relief on all issues raised in her appeal, with the court finding no significant errors affecting her right to a fair trial. **Access the full opinion:** [Download PDF of the Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1267_1734782177.pdf)

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F-2018-1144

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In the case of William G. Epperly v. The State of Oklahoma (Case No. F-2018-1144), the Oklahoma Court of Criminal Appeals upheld the judgment and sentence imposed by the District Court of Oklahoma County. The court found that the evidence presented during Epperly's trial was admissible, and his claims of error, including issues related to hearsay, relevance, and jury instructions, did not warrant reversal of his conviction for Sexual Abuse of a Child. ### Key Points from the Court's Decision: 1. **Admission of Excited Utterance Evidence**: The court found that statements made by Tiffany Epperly (Epperly's spouse) to two witnesses fell under the excited utterance exception to hearsay, as she was under emotional stress when she reported witnessing the alleged abuse. 2. **Text Messages and Witness Testimony**: The court ruled that reading text messages sent by Sutphen to Tiffany Epperly was not hearsay because they were used to challenge Tiffany's credibility rather than to prove the truth of the matter asserted. Additionally, the testimony about Tiffany's changing demeanor was deemed relevant to the case. 3. **Witness Reading from Police Report**: Former Officer Richardson's reading from his police report, which included Tiffany Epperly's statements, was allowed because it served to impeach her trial testimony, not as hearsay. 4. **Internet Search Evidence**: The court deemed the evidence concerning Epperly's internet search about Oklahoma sex laws to be relevant, as it could suggest a consciousness of guilt. 5. **Judgment and Sentence Corrections**: The court noted that the issues regarding credit for time served and the $100 fine were resolved with an amended judgment, making that claim moot. 6. **Jury Instruction on Sex Offender Registration**: The court did not find that the failure to instruct the jury about sex offender registration constituted an error warranting relief, consistent with prior rulings. 7. **Cumulative Error Doctrine**: The court concluded that no individual errors occurred that would justify reversal and therefore found no merit in the cumulative error claim. ### Conclusion: The court affirmed the judgment and sentence of the district court, concluding that all claims raised by Epperly were without merit. The decision illustrates the court's adherence to evidentiary rules and its support for the discretion exercised by the trial judge in admitting evidence. For more detailed information, the full opinion can be accessed [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1144_1734787047.pdf).

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F-2017-963

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In OCCA case No. F-2017-963, Randall Duane Throneberry appealed his conviction for Lewd Acts with a Child Under 16. In an unpublished decision, the court decided to affirm the conviction and the sentence of life imprisonment without the possibility of parole. One judge dissented. Randall Duane Throneberry was tried and found guilty in an Oklahoma court for lewd acts with an child under the age of 16. The jury recommended that he be sentenced to life in prison without any chance for parole because he had a prior conviction for a similar crime. The case began when a young girl named R.F. reported that Throneberry had molested her while she was sleeping on a couch. The events happened in August 2015 when R.F. and her mother were staying at a family friend's house, where Throneberry was also visiting. One night, while R.F. was sleeping, Throneberry was found standing too close to her and had his hand under her blanket. The next morning, R.F. woke up to find Throneberry touching her inappropriately. During the trial, Thorneberry argued that some testimonies regarding R.F.'s behavior after the incident should not have been allowed, claiming that it unfairly impacted the jury. However, the court ruled that this evidence was relevant to show the credibility of R.F.'s testimony. Throneberry also challenged the admission of testimony from another victim, D.W., who had been molested by him when she was seven years old. The court allowed this testimony as it demonstrated Throneberry's pattern of behavior. Despite Throneberry's claims, the court found that the testimony was relevant and important for the case. Throneberry's argument that his life sentence without parole was unconstitutional was also denied. The court stated that the sentence was not excessively harsh compared to the serious nature of the crime and Throneberry's history of similar offenses. The judge noted that sentencing is ultimately a matter for the legislature, and in these kinds of cases, severe punishments are justified. In summary, the court upheld Throneberry's conviction and life sentence, finding no errors in the trial or the evidence presented. The judgment was affirmed, with one judge expressing a different opinion.

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F-2017-1019

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In OCCA case No. F-2017-1019, Johnson appealed his conviction for Child Sexual Abuse. In an unpublished decision, the court decided to affirm Johnson's conviction and sentence. One judge dissented. Johnson was found guilty of abusing a child and was sentenced to twenty-five years in prison. He also had to pay a fine and would be supervised after serving his time. Johnson argued that the evidence against him wasn't enough, that the jury didn't get proper instructions, that his lawyer didn't help him much, and that he didn’t know he would be on a list of sex offenders if convicted. The court looked closely at all these claims and found no significant problems. First, the court said there was enough evidence for the jury to decide Johnson was guilty beyond a reasonable doubt. Johnson claimed the actions happened because of a dream, but the jury believed otherwise. The court said that it would not change the jury's decision as they followed the law. Second, the court noted that the jury had received instructions about what would happen after Johnson was imprisoned. So, this point did not hold. Third, Johnson's claim about his lawyer not performing well was also denied. For this claim to work, Johnson would need to show that his lawyer made a serious mistake that hurt his defense. However, Johnson only gave statements about his own state of mind without clear evidence to support his claim. The court found that his lawyer did not make mistakes that harmed Johnson's case. Next, the court looked at the claim about sex offender registration. Johnson said the jury should have been told more about this, but he never asked for this instruction during the trial. The court decided there was no clear error because they had already ruled on this issue in past cases. Finally, the court dismissed Johnson's claim about the combined effects of the errors. Since they found no significant errors, they concluded that his right to a fair trial had not been violated. In the end, the court upheld Johnson's conviction and sentencing, affirming the judgment made by the lower court.

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F-2017-1029

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In OCCA case No. F-2017-1029, Timothy Brian Bussell appealed his conviction for Rape in the First Degree - Victim Unconscious. In an unpublished decision, the court decided to affirm the judgment and sentence against him. One judge dissented. Bussell was found guilty by a jury and was sentenced to life imprisonment with the possibility of parole, even though the jury recommended life without parole. The case involved Bussell and a co-defendant, who filmed another co-defendant having sex with an unconscious victim. The jury believed there was enough evidence to show Bussell helped and encouraged the assault. Bussell raised ten arguments in his appeal, claiming errors during his trial. He argued that he did not get proper notice of the charges against him, that there was not enough evidence to convict him, and that the trial should have separated him from his co-defendant. He also claimed the victim's testimony was not credible, the prosecution made unfair statements, and that his lawyer did not do a good job. The court reviewed the evidence and found it sufficient for a conviction. They determined there were no significant errors that would affect his rights. The court emphasized that someone's testimony alone could support a conviction, especially if it was backed by video evidence. They concluded that Bussell knew the accusations he was facing and did not show that he was prejudiced by any mistakes made during the trial. Ultimately, the court decided that Bussell's claims did not show any grounds for reversing his conviction. His serious involvement in the crime was evident. The sentence was upheld as appropriate based on the crime he committed, emphasizing the importance of the victim's mistreatment.

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F-2012-916

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In OCCA case No. F-2012-916, Andrew Lee Harris appealed his conviction for Possession of a Controlled Substance (Cocaine) after being found guilty by a jury in the District Court of McCurtain County. In an unpublished decision, the court decided to modify his sentence from thirty years to twenty years in prison. One judge dissented. Andrew Lee Harris was found guilty on charges for having cocaine. His punishment was set at thirty years, but he did not agree with the decision and decided to appeal. During the appeal, he argued that: 1. The jury wasn't given the right instructions about possession of paraphernalia, which he thought was unfair. 2. The prosecutor gave improper evidence and made comments that affected the fairness of his sentencing. 3. The trial court did not follow required procedures in his case. The court analyzed these claims carefully. In the first point, they decided that the jury did not need to be told about possession of paraphernalia because it was not a lesser included offense of cocaine possession. This means it was a separate crime, and the judge was right not to give those instructions. In his second point, the court looked at the information that was presented during the trial. They said there were some mistakes with what was allowed as evidence. A former probation officer talked about Harris's past, which shouldn't have been mentioned because it could make the jury think about parole and probation unfairly when deciding his sentence. The court found that this could have influenced the jury, especially since they asked questions about how long Harris would be on parole. Therefore, they decided that because of this, it was necessary to reduce his sentence to twenty years. As for the third point, the court felt that the way the trial judge handled certain procedures was not a problem anymore because they had already decided to change Harris's sentence based on the earlier mistake. In the end, the court agreed with Harris’s reasoning about how he should have been sentenced, leading them to change his punishment. They affirmed his conviction but modified the sentence to twenty years in prison.

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F-2010-555

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In OCCA case No. F-2010-555, Keighton Jon Budder appealed his conviction for First Degree Rape (Counts I and III), Assault and Battery with a Deadly Weapon (Count II), and Forcible Oral Sodomy (Count IV). In an unpublished decision, the court decided to modify his sentences for Counts I and III to life imprisonment with the possibility of parole. One judge dissented.

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F-2009-399

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In OCCA case No. F-2009-399, Jeffery Robert Johnson appealed his conviction for Assault and Battery with a Deadly Weapon. In a published decision, the court decided to reverse Johnson's conviction and order a new trial. One judge dissented. Johnson was convicted of stabbing his roommate, Maurice Sartor, after a dispute over money. Johnson claimed he was acting to defend his girlfriend, Malinda Brookey, who was being threatened by Sartor. During the trial, there was a disagreement over how the events happened, especially regarding whether Sartor was the aggressor. The key issue in Johnson's appeal was about a mistake in the jury instructions. The trial court gave the jury a modified instruction about the defense of property that led to confusion. This instruction suggested that Sartor had the right to use force to get his property back, which Johnson argued was not true since he believed he was defending his girlfriend from Sartor's aggression. Johnson's lawyer objected to the instruction at the time of the trial, which meant they could raise this issue in the appeal. The higher court found that this error in the jury instructions was significant enough that it likely affected the fairness of the trial. Because of this, they reversed Johnson's conviction and ordered a new trial while not addressing Johnson's other claims or his request for a new trial based on new evidence. This decision means Johnson will get another chance to present his case in front of a new jury, with the hope that the instructions will be clearer and fairer this time. The dissenting judge disagreed with the majority's decision, believing the original instructions were appropriate and did not compromise Johnson's defense.

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F-2004-146

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In OCCA case No. F-2004-146, Luke Sinclair appealed his conviction for Murder in the First Degree. In an unpublished decision, the court decided that his conviction would be upheld, but he would be resentenced. One judge dissented. Luke Sinclair was found guilty of murdering James Robbins by shooting him four times in the chest. The incident happened in the early hours after Sinclair and his friends had been drinking at a bar. Robbins, a retired Army veteran, approached Sinclair and his friends in the parking lot, trying to engage them in conversation. Sinclair and his friends found Robbins to be strange and made dismissive comments. Sinclair even jokingly suggested that Robbins should be shot. Believing they were joking, Sinclair's friends egged him on when he drove after Robbins, blocked his van, and then shot him. After the shooting, Sinclair instructed his friends to keep quiet about the incident. Sinclair admitted on appeal that the evidence against him was strong and that he was guilty. Sinclair raised several issues in his appeal, particularly concerning the sentencing process. He argued that he should have been allowed to present evidence about his character during sentencing and that his lawyer did not provide effective representation. The court found these claims unpersuasive, noting that the evidence of guilt was overwhelming and suggesting that presenting this character evidence could have hurt Sinclair's case more than helped it. One of the significant points in Sinclair’s appeal related to whether the jury was instructed about the state law that required defendants convicted of murder to serve 85% of their sentences before being eligible for parole. Sinclair argued that jurors mistakenly believed a life sentence meant he could be released after a few years. The court agreed with Sinclair regarding the instructions on the 85% rule, so they decided to reverse the sentence and remand the case for resentencing. Additionally, Sinclair complained about the prosecutor's arguments in closing that he was a dangerous man lacking conscience, which were not supported by the evidence. The court found that the prosecutor's statements were problematic and influenced the jury in reaching their sentencing decision. In conclusion, while Sinclair's conviction remained intact, the court ruled that he should be resentenced due to the errors in the jury instructions and the inappropriate comments made during his trial.

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F-2003-1316

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In OCCA case No. F-2003-1316, Jason Van Dusen appealed his conviction for Rape by Instrumentation and First Degree Rape. In a published decision, the court decided to affirm the judgments but modify the sentences to thirty years of imprisonment for each count, to be served one after the other. One judge dissented. Van Dusen was found guilty in Blaine County after a trial. The jury decided on the sentences based on what they heard during the trial. Van Dusen raised concerns about not having a fair sentencing because information was given about parole and the length of the sentences. He also claimed that the prosecutor acted in a way that was unfair, which made his trial not just. The court looked carefully at everything from the trial and the arguments made by both sides. They agreed that the prosecutor should not have mentioned parole in the closing arguments, which is why they decided to change Van Dusen's sentences from seventy-five years to thirty years for each count, making the total time to be sixty years. The judges felt that this was a fair adjustment, considering the improper comments made during the trial.

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F-2002-855

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In OCCA case No. F-2002-855, Brandon Grimland appealed his conviction for First Degree Manslaughter. In an unpublished decision, the court decided to affirm the conviction but modified the sentence from one hundred years to twenty-five years imprisonment. One judge dissented, believing the case should be sent back for re-sentencing. Grimland was found guilty of causing the death of another person through a beating that led to severe injuries. The trial jury recommended a very long sentence of one hundred years, but there were concerns about how the prosecutor talked about parole, which might have influenced the jury's decision. The court agreed that the way the prosecutor approached the topic was not right and decided to reduce the sentence to a more reasonable twenty-five years. While the conviction stood, the judges thought it was important to correct the sentence based on how the trial was conducted.

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F-2001-278

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In OCCA case No. F-2001-278, Kirk appealed his conviction for First Degree Murder, Domestic Abuse After Former Conviction of Domestic Abuse, and Assault and Battery with a Dangerous Weapon. In a published decision, the court decided that the convictions for First Degree Murder and Assault and Battery with a Dangerous Weapon were affirmed, while the conviction for Domestic Abuse After Former Conviction of Domestic Abuse was reversed and remanded with instructions to dismiss. One judge dissented. Kirk was found guilty after an incident on January 24, 2000, where he lived with Reva Gail Sweetin. That night, Kirk's friend, Billy Whiting, visited them. After drinking alcohol, Whiting became very drunk and fell off the couch multiple times. Sweetin tried to help him, but Kirk later emerged with a knife and attacked both Sweetin and Whiting, ultimately fatally stabbing Whiting. Kirk raised several arguments during his appeal. First, he claimed the evidence was not enough to support his convictions, arguing that the witnesses who testified against him were not credible. However, the court found that the evidence supported the jury's decision. Second, Kirk argued that being convicted of both Domestic Abuse and Assault and Battery was unfair because both were for the same action. The court agreed with this point and decided to dismiss the Domestic Abuse conviction. Kirk also claimed that the prosecutor inappropriately vouched for Sweetin's credibility during closing arguments. The court concluded that these comments did not indicate the prosecutor's personal opinion but were a response to the defense's arguments. Another concern raised by Kirk was about other crimes evidence that the prosecutor brought up regarding his ex-wife, but the court determined that the jury was properly instructed to disregard it. Kirk argued that he should have received instructions about the witness's past bad acts. While the court agreed this was a mistake, they believed it did not significantly affect the trial's outcome due to the strong evidence against him. Lastly, Kirk claimed the overall errors during the trial were enough to warrant a new trial. However, since the court had already determined that one of his convictions should be reversed, they found there were no additional grounds for relief. In summary, the court upheld the murder and assault convictions, dismissed the domestic abuse charge, ensuring a focus on the primary acts Kirk committed during the incident.

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